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Ask
Social Media and Background Checks: A Legal Perspective
WHAT YOU SHOULD KNOW BEFORE YOU START

Q. I recently attended a networking luncheon and was surprised to learn that many of my fellow Recruiting Managers make their hiring decisions based heavily on the candidates’ social media postings on Facebook, etc. Is it appropriate for employers to check applicants' Facebook postings as part of their screening process and what are the potential legal ramifications in making hiring decisions in whole or in part on social media postings?

Malcolm MacKillop,
LL.B, Senior Partner,
Shields O’Donnell
MacKillop LLP
A. It is not surprising that you would have come across Recruiting Managers who engage in this practice. Rather than having to rely on an applicant’s resume, references or interviews to find information, the explosion of technology and social media websites have made it easier than ever to learn details about potential hires – and Recruiting Managers have taken advantage. A 2009 U.S. survey of over 2,600 hiring managers for CareerBuilder.com revealed that 45% used social networking sites to screen potential employees.

Privacy Concerns

While the use of social media to conduct background checks is becoming more common, it is not without some serious legal risks, the first of which is running afoul of Canadian privacy legislation. In a recent speech, Elizabeth Denham, Assistant Privacy Commissioner of Canada, stated that, given the recent emergence of this issue, her office had never investigated a complaint involving an employer who performs surreptitious background checks of a job applicant’s social networking sites, but her feeling was that the Personal Information Protection and Electronic Documents Act (or PIPEDA) would prevent that kind of collection of personal information.

PIPEDA is a federal law that protects the privacy of personal information in Canada. Specifically, the law prohibits a federally regulated employer from using or collecting an employee or potential employee’s personal information without their knowledge and consent, subject to a number of exceptions. The viewing of an employee’s blog (collection) and the use of it for hiring purposes (use) would seem to fall under these provisions.

However, PIPEDA does not apply where the personal information is “publically available”, including a publication in electronic form. It is arguable that a job applicant’s disclosure of personal information in a publically available blog post would qualify, however since there have been no complaints or investigations on the issue, it is difficult to predict exactly how the exceptions would be applied.

Another important consideration is that PIPEDA, as federal legislation, only applies to federally regulated employers, a very small percentage of employers in Canada. While British Columbia, Quebec, and Alberta have enacted similar legislation, Ontario, for example, does not have its own PIPEDA, leaving provincially regulated employers in that province facing fewer legislative barriers to the collection of personal information on the Internet.

Human Rights Concerns

Leaving aside privacy law considerations, there is another major concern for employers who engage in this practice - human rights legislation. Even if the information is publically available on an applicants’ Facebook page, there are certain types of information that an employer cannot use to make hiring decisions. While employers know not to ask job applicants about protected characteristics such as their marital status, race, religion, age, etc., this information will often come up in an online search and can be difficult for employers to avoid.

An employer who inadvertently exposes itself to that kind of information opens itself up to a human rights complaint from an unsuccessful applicant alleging that the decision not to hire them was based on a discriminatory consideration. The applicant would not be required to prove that discrimination was the only reason that they didn’t get the job, only that it was a factor in the decision. Where the evidence is clear that an employer had access to inappropriate information about the potential employee, it may be difficult for an employer to rebut the candidate’s case and show that the information did not play a part, even unconsciously, in the hiring decision.

Conclusion

While there is an abundance of information about potential employees out in cyberspace, performing a social media background check is probably not worth the risk for employers. Even in provinces where privacy law is less of a concern, the risk that discriminatory factors will creep into results and taint the hiring process is substantial. Though an employer may be completely innocent and disregarded any inappropriate information when making their decision, fighting a human rights complaint to prove it can be a difficult task and likely outweighs any benefits gained by performing the search in the first place.

Malcolm MacKillop, LL. B. is Senior Partner, Shields O'Donnell MacKillop LLP in Toronto and can be reached at (416) 304-6417 or via email at mmackillop@djmlaw.ca.

At Will Terminations
WHAT YOU SHOULD KNOW

Q: I am HR Director for a company that has offices in both Canada and the United States. We are considering restructuring our operations which will necessitate the reduction in staff. Are there any major differences between Canadian and U.S. employment law with respect to terminations?

Simon R. Heath,
Keyser Mason Ball
LLP
A: Generally speaking, the biggest difference between Canadian and American termination is the employee’s severance entitlement upon termination. In Canada we have common law notice whereas in many American states, they have “at will” terminations.

Most employers with both Canadian and US operations know that Canadian employees have significantly better statutory and common law protections with respect to their severance entitlements than their American counterparts. This is highlighted by not-for-cause terminations that are necessitated by workplace restructurings which are all too common in our present economy.

In Canada, if an employee is employed for an indefinite term, the employer can only terminate his/her employment without cause on the payment of common law notice. The common law requires that employees be given advance notice that they will be terminated or receive payment in lieu of advance notice. The amount of notice or payment in lieu thereof that the employee is entitled to is determined by analyzing the following key factors: the employee’s age, length of service, nature of their job and the availability of similar employment in the marketplace.

In Canada, the parties can rebut the principle of common law notice if they agree in the employment contract to another amount of severance to be paid. The key condition is that the amount of severance stipulated in the contract must be at least equal to the amount of severance the employee would be entitled to under the applicable employment standards legislation.

In contrast, in the US, employment law is generally regulated at the state level. However, virtually all US states uphold the doctrine that if an employee is employed for an indefinite term, he or she is employed “at-will”, which means that either the employer or the employee may, generally speaking, terminate the employment relationship at any time, for any reason or for no reason whatsoever, and with or without advance notice or payment.

Although the “at-will” doctrine is technically in force in most jurisdictions in the US, the application of this doctrine varies from state to state. To what degree each state upholds the “at-will” doctrine depends on the exceptions that the individual state has developed.

The most common exceptions include:

  • The employment contract provides greater protections for the employee (i.e., very common for the parties to negotiate severance at the outset of the employment relationship).

  • A collective bargaining agreement between a union and the employer provides for discharge only if there is "just cause".

  • Wrongful discharge in violation of public policy.

  • Statutes that prohibit termination in certain circumstances such as if the termination would violate an employee’s civil rights.

    Simon R. Heath, B.A, MIR, LL.B., is an associate in the law firm Keyser Mason Ball LLP and can be reached at sheath@kmblaw.com


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